A democracy that rests on a single Supreme Court vote is “living on borrowed time” and Monday’s oral arguments suggest that time may be running out, Slate legal analyst Mark Joseph Stern warned Monday.
Stern watched four conservative Supreme Court justices signal their willingness to gut mail ballot grace period laws in 30 states, potentially invalidating the votes of 750,000 Americans, with fewer than 150 days until the midterms.
“The Supreme Court may be poised to commit the single biggest act of disenfranchisement in modern history in a direct assault on the constitutional authority of states to set election laws,” he wrote, mincing no words.
The case, Watson v. Republican National Committee, centers on whether states can count mail ballots that arrive after Election Day if they were postmarked on time. About 30 states have such laws, but the Trump administration wants them wiped out in “one fell swoop,” he wrote.
Stern expressed alarm at the legal stakes and the court’s reasoning.
“That news, in itself, is a five-alarm fire for democracy. But what makes it even more disturbing is the fact that so many justices proved eager to embrace a legal theory that is incoherent, dishonest, and rooted in paranoid hostility toward mail voting,” he emphasized.
Justice Samuel Alito invoked the “appearance of fraud” as justification for gutting the laws, even though Mississippi’s own solicitor general acknowledged there has not been a single documented case of fraud from late-arriving ballots this century.
Stern noted the only reason an “appearance of fraud” exists is that Republicans spent years manufacturing it, and now they want to use that manufactured paranoia as a legal weapon.
Conservative justices Brett Kavanaugh, Clarence Thomas and Neil Gorsuch each piled on with what Stern called conspiratorial hypotheticals bearing no resemblance to actual law or evidence.
Chief Justice John Roberts and Amy Coney Barrett, who appear to be the only remaining question marks, sounded skeptical of the Republican argument but gave nothing away.
“Watson should have been laughed out of court,” Stern wrote. “Instead it received a warm reception.”
He concluded: “A democracy that rests on the knife’s edge of a single Supreme Court vote is living on borrowed time.”
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